The Year Of Living Dangerously: Obama And The Law

One year ago, on Inauguration Day, the liberal legal establishment was drooling over itself at the prospect of a Democratic administration applying its version of the "rule of law" to American life. Survivors of eight long years of partisanship, cronyism, misfeasance and malfeasance during the Bush era, enemies of Unitary Executive Theory, aghast at the destruction wrought by men like John Yoo and Alberto Gonzales and David Addington and Dick Cheney, these lawyers and judges and academics and authors believed (or said they did) that President Barack Obama, a former constitutional scholar and a progressive thinker, would right the ship.

One year later, we can say with certainty only that things mostly did not get worse. We can say, as our financial experts tell us about the economy, that the freefall in legal principle and policy "bottomed out" in 2009 as a result of the decisions by the President and his Attorney General, Eric Holder. We can say that the Obama administration has created a foundation upon which it may continue to build over the next three years. And we can point to a few specific instances of direct reversals in policy-- from Bush to Obama-- that have altered the nation's legal landscape and future.

What we cannot say is that the current administration has achieved a comfortable level of certainty and clarity over some of the most pressing and vital legal events and issues of our time. The war on terrorism is still mostly a muddled mess. The U.S. Attorney scandal has not been fully explored. The fat-cat architects of our economic disaster remain mostly free, rich, and still earning bonuses.

What follows is a brief list of the five best and five worst accomplishments by the Obama administration since taking office on January 20, 2009.

The five best law-related moves by the Obama White House and Justice Department:

1. The decision to bring 9/11 planner Khalid Sheikh Mohammed to trial in federal civilian court in New York City. Some particularly overwrought yahoos-- fellow travelers of the same folks who gave us torture and unlawful military tribunals-- see this as the worst move ever in the history of American governance. I see it as bold and brilliant. For too long now, our government and many in our media have portrayed people like Mohammed as monsters. Our courts and our trials will reveal them only to be men. Creepy, lame, pathetic, sorry men. You tell me what's wrong with that.

2.The decision to end the federal government's enforcement of its criminal laws against medical marijuana users. Not only does this signify a wiser use of limited resources, it also has spawned an important national debate about the validity of state laws that prohibit medical marijuana. Here we observe the government seeing the larger picture on pot-- ultimately it will be legalized and taxed like liquor and cigarettes-- and getting on the right side of history.

3. The decision to nominate Sonia Sotomayor for the United States Supreme Court. There is no way to tell for sure whether Justice Sotomayor is going to be good, bad, or just plain hapless on the High Court. But she was clearly qualified to be appointed, shakes up the Court in a way that cannot be bad, and gives hopes to millions of wise Latinas and Latinos that the highest barrier in our justice system is accessible to them.

4. The multi-administration, inter-branch compromise deal over the White House's assertion of "executive privilege" for Karl Rove in the continuing investigation into the 2007 U.S. Attorney scandal. It was not a perfect solution. But it avoided a showdown in the federal courts that would have lasted months, perhaps years, at a cost of even less bipartisanship in Washington. Some called it a cop-out by the White House. I call it practical.

5. The decision to narrow in meaningful ways the extraordinarily broad view the Bush Administration took of the "state secrets" doctrine, which allows the government to block lawsuits by mere assertions of national security interests. After an initial misstep, in which the Justice Departement defended the Bush era policy, the executive branch backed off a bit and offered the federal courts a larger, and more appopriate, role in determining when the doctrine could be successfully invoked.

The five worst law-related moves by the Obama White House and Justice Department:

1. The failure to release the much-anticipated Office of Professional Responsibility report about Bush era torture policies. There is no excuse for the continuing delay, especially when you consider that the de-classified version we'll see already represents a huge concession to former Bush officials. We didn't have a "truth" commission on torture. We didn't have meaningful Congressional investigations. The least the White House could have done was get that OPR report out on time.

2. The Administration's legal support of the Defense of Marriage Act, the odious federal law which allows one state to ignore the same-sex marriages legalized in another state and which defines marriage as only between a man and woman. Candidate Barack Obama said he would like to repeal DOMA. But when the time came for his lawyers to have a say in court, they didn't even push the issue (much less push Congress to repeal the Act).

3. The Justice Department's decision to punish "whistleblower" Bradley Birkenfeld for not being honest enough with investigators in June 2007 before outing himself and the Swiss banking giant UBS. Birkenfeld's disclosures ultimately led to a $780 million payment from UBS to the U.S. government and forced many of UBS's clients to finally pay their taxes to the IRS. Birkenfeld is the most profitable whistleblower in the history of the world. And yet the feds didn't go to bat for him. That's nonsense.

4. The Administration's failure to help the Congress (where Sen. Arlen Specter againpushed for legislation for more cameras) or the federal courts (where the judge for the Prop 8 case in California was spanked down earlier this week by the Supreme Court after trying to provide some streaming video of the trial) on the most transparently transparent issue of all: why can't the American people watch what our biggest and most important judges do at work? The Justices aren't going to do it until they are politically forced to do so and that won't happen until both of the other branches, representing the people, squawk louder. The glorious C-SPAN still exists for a reason.

5. The Administration's failure to break the cycle of political pettiness (still bad after decades with both sides to blame) that have slowed to a drip the pace of federal judicial appointments. There has to be a better, faster way to re-populate the federal courts. Oh, and at the same time that the Congress and the White House are failing to confirm judges, sitting judges are overloaded with the growing number of federal cases in the system. There are at least 70 empty/unfilled judicial posts now; 70 fewer distinguished jurists to hold hearings and hear trials and dispense justice to criminal and civil litigants. We are not quite to the level of third-world delayed justice. But we are not heading in the right direction.